Linderman v. Carmin

COX, J. This law suit originated in the probate court of Greene county, in 1908. The plaintiffs are the parents of Yernie Carmin, who was the wife of L. L. Carmin, deceased. The defendant is the administrator of the estate of said L. L. Carmin. The demand presented in the probate court was originally for the sum of $939, made up of five items, to-wit: “$220 for money loaned L. L. Carmin to defray traveling expenses to California; $100 to defray funeral expenses of his wife; $129 to defray undertaker’s expenses for the burial of the wife of L. L. Carmin; $200 for money had and received, and $300 for money had and received.” In the probate court the plaintiffs prevailed and were allowed the claim in full. The defendant appealed to the circuit court, and on trial before a jury, on June 28, 1909, the plaintiffs again obtained a judgment for $439, but subsequently entered a remittitur of $129, leaving the judgment stand for $310. The cause is now here on appeal by the defendant. On the trial in the circuit court, an instruction was given to the jury that plaintiffs were not entitled to recover on the items of $200 and $300 for money had and received, and as the remittitur was entered for the $129 sued for as additional funeral expenses, the only items before us for review are the $220 item for money advanced for traveling expenses to California, and $100 loaned to defray funeral expenses. The facts of the case are as follows: The deceased, L. L. Carmin, married the daughter of the plaintiffs in 1899, and they afterward moved to Kansas City, and — 522 — the old folks gave them a restaurant business. They continued in the restaurant business for about a year, when the father of the wife purchased the restaurant and gave her $500 in cash therefor. After this, the parties had no permanent home, but lived a part of the time with the plaintiffs at Sheffield. The daughter, Vernie, left her husband in 1906 and was last heard from at' Sulphur Springs in September, 1906, from which place she wrote a card to her folks, stating she . would write again in a few days. The next heard of her was in November, 1907, when . her parents saw in a newspaper that she had been killed in California. Upon the receipt of this information, her father wired her husband to come to Kansas City. He immediately went to Kansas City, jmd there was a conversation between him and his father-in-law in regard to going to California after the remains. As a result of this conversation $220 was furnished to Carmin by Linderman, and he went to California. The next heard of him was a telegram asking for an additional $100. The amount was wired to him. When he returned, he brought for burial the body of his wife, and returned to his father-in-law $10, being the amount he had left unexpended. The father made arrangements for the burial and paid, a few days after the burial, the expenses thereof, amounting to $129. In order to determine the merits of this controversy, it is necessary for a further understanding of some other financial transactions between the parties. When the wife left the husband in 1906, he made some bitter complaint to her parents to the effect that she had taken his money and property (although it is practically conceded he had none), and he was threatening to put her picture in the newspapers and advertise for her. In order to save this threatened humiliation, a written contract was entered into between the parents and the husband by the terms of which they agreed to give, and did give, him a note for $1000, due in a year, — 523 — conditioned that the same should be null and void in case the husband and wife became reconciled within the period, and also the note was accepted by the husband as a full and complete settlement of all property disputes between him and his wife and her parents, and it was further agreed that all property and effects belonging to the wife should be turned over to the parents as security for the note and the husband relinquishing to his wife all of his right, title, interest and claim in and to the property. The husband, after securing this note and contract, did not turn over to the parents any of the property in his possession, belonging to his wife. After his return from California, he represented to the old folks that if they would take up the old contract and give him the one thousand dollars he would see to his wife’s property in California, take care of it for them, and also ship her things to them as soon as he got to Springfield, whereupon they executed to him three notes, one for $300, two for $250 each, and gave him $200 in cash, to take up the $1000 note. They afterwards paid the $300 note, and two items of the. account presented in the probate court were to recover the $200 cash, and the $300 paid in taking up the $300 note. After getting this money and notes, the son-in-law again absolutely failed to carry out his part of the contract. These items, however, were taken out by the court below, and are not now before us. The defendant offered in evidence, a letter written by his mother-in-law, Mrs. Linderman, on January 11, 1908, from which we gather that the husband, in violation of the contract upon which he obtained the $200 in cash and three notes, made a claim to the property of his wife, and in this letter the mother-in-law says: — 524 — “Sheffield, Mo., Jan. 11, 1908. “Mr. L. L. Carmín. “Dear Sir: Lu, we were surprised when we got the letter from Mr. Barnett. We trusted you to go out there and paid every cent for you, never thinking that you would swear to the statement you did. Now this compels us to make oath as to where Vernie got the money. Her pa paid her five hundred dollars for the restaurant, and the other she made by hard work in the restaurant. Her pa was with her when she went to the New England Bank here in K. C., the morning of the 27th of Sept. 1905, and had the money changed for the thousand dollar bill, which you made oath on the witness stand that she stole from you, and that it came from your mother’s estate. Lu, how could you have sworn to such a falsehood. Vernie told me, and you did too, that she gave you the money to keep for her while in Hot Springs she was going out somewhere, and you never would give it back to her, and, of course, as it never was yours, only in your trust, you should have given it back to her without her having to take it. Now as we are paying you the thousand dollars and you are out nothing, not even1 a meal while you was out in California, you never told the people out there that we was paying all of your expenses for you. We are so sorry that we ever had you go there, but we trusted you and thought you would do what was right, but found we was deceived by you. I don’t know what kind of a turn this will make in California, but we are duty bound as parents to Vernie to protect her now in regards to how she came by the money. The poor child’s life has been a failure. But I pray to the God above who knows all things that the poor little thing’s spirit is now at rest, and now, Lu, I will close, hoping to hear from you at an early date, and you will send me all of her things as you promised'. “Very respectfully, “Mes. H. P. Linderman.” — 525 — The only error assigned is the refusal of the court to sustain a demurrer to the testimony. Appellate courts do not weigh evidence and should never set aside the verdict of a jury where it is supported by substantial testimony, or where the facts bearing on the issues are disputed or undisputed, but admit of different conclusions or inferences upon which reasonable minds might differ. [Williamson v. The Transit Co., 202 Mo. 345, 100 S. W. 1072; Vincent v. Means, 207 Mo. 1. c. 713, 106 S. W. 8.] A court may determine what is substantial testimony, Stafford v. Adams, 113 Mo. App. 717, 88 S. W. 1130, but when that is done the court has exhausted its power and the duty of weighing the evidence belongs exclusively to the jury. In support of this verdict the respondent has the right to every reasonable inference which may be drawn from the evidence. [Wilson v. Board of Education, 63 Mo. 1. c. 140; Heether v. Huntsville, 121 Mo. App. 495, 97 S. W. 239.] The. appellate court usurps its power when it attempts to. substitute its own judgment for that of the jury, as the law that gives the court the right to declare the law gives the jury the right to find the facts. [Levels v. The Railroad, 197 Mo. 1. c. 617, 94 S. W. 275.] The only items to be considered on this appeal are $220 furnished Carmin before he started to California, and $100 wired to him after he reached there. Was there substantial evidence in this, case to support the verdict for these two items? The testimony on which plaintiff relies is as follows: Stell Linderman, a daughter of plaintiffs, testified in relation to what transpired between her father and Carmin at the time, the $220 was furnished, and this was all the direct testimony in relation to that matter. Her testimony on that question is as follows: “Q. Did you hear any conversation between Mr. Carmin and your father in regard to going to California? A. Yes, — 526 — sir. Q. Tell the jury what he said. A. He said he wanted to go to California, but wasn’t able to go. o Said he didn’t have the means to go on, and my father advanced him the money. Q. How much money? A. $200.” Then follows testimony to the effect that her father, afterwards, on receiving- a telegram from Carmín, Avired $100 to him. ' On cross-examination we find this testimony. “Q. Did your father wire for him to come to Kansas City? A. Yes, sir. Q. Told him that Vernie, your sister, had been killed? A. Told him it was in the paper. Q. And asked, him to go to California? A. My father intended to go and Mr. Carmín said he lcneAV he could identify the body better and wanted to go. Wanted to know if my papa and mamma would not advance the money? Q. They advanced the money? A. Yes, sir, they advanced the money for him to go on.” We note first that this Añtness does not give the language of the parties, but only her conclusions from it. This was permitted without objection and the attorney for the defendant, in the cross-examination, led her to repeat her testimony in practically the same language. Now, if we take the language used by the witness and give it the interpretation most favorable to plaintiff, what does it mean? She testified that her father advanced to Carmín $220. This term advance, when used in a contract, usually means money furnished Avith an expectation that it shall be returned. [Hartjo v. Collins, 46 Pa. St. 268; Balderston v. National Rubber Co., 27 Atl. 507; Gottleib v. Burkhardt, 97 U. S. 110.] Webster’s definition carries the same idea. Abbott’s Law Dictionary defines it as follows: “To furnish value before it becomes due, or in aid of an enterprise from which a return is expected.” If this language had occurred in a Avritten contract wherein one party had agreed to advance money to another and the court were called upon to construe it, there can be no question — 527 — that it would be held to mean that the money was to be repaid, and it could not be construed to mean a gift, unless it was expressly so stated. Such language might be used in connection with a gift. It does not necessarily mean that money advanced must, under all circumstances, be returned; yet, that is the sense in which it is most commonly used. Had hn objection been made and the witness been required to give the language used by the parties, such language might have shown a clear understanding that the money was to be repaid, or it might have shown it to have been a gift; but having' permitted the witness to testify to her own conclusion of the matter, the defendant- must now be held to have waived his right to require a detailed statement of the conversation and the jury must be permitted to draw from the testimony, as given, the strongest reasonable inference in plaintiffs’ favor which the testimony will bear. If this testimony, above quoted, had been all the evidence in the case, we have no hesitancy in saying that it would support the verdict. The defendant contends, however, that the subsequent conduct of plaintiffs, in signing notes and paying money to Carmin, and the letter written by Mrs. Linderman, are inconsistent with the claim that Carmin was, at that time, indebted to them, and raises the presumption that no such debt as now claimed by them existed and for that reason the demurrer to the testimony should have been sustained. This contention is not sound. To so hold would be for the court to say that these facts rebutted and overthrew the testimony of Stell Linderman, which tended to show that the money was furnished with the understanding that it should be returned and to do that would place the court in the position of weighing the testimony which it cannot do. Declarations of a party against his interest are presumed to be true because against his interest, but this presumption is not a conclusive one, — 528 — and the court cannot tell the jury how much weight they must give to either the acts or the declarations of a party that may be in conflict with his position at the trial. The jury must weigh the testimony even though it all comes from one side and • be uncontradicted. [Seehorn v. Bank, 148 Mo. 256, 49 S. W. 886; Bank v. Hammond, 124 Mo. App. 177, 101 S. W. 677.] It would be a subversion of this rule to hold that when the evidence offered by one party was in some particulars contradictory that the court could then declare the effect of the contradiction, and, in that way, take from the jury their power to weigh the testimony as a whole. Such testimony could not do more than raise a presumption of fact; that is, the jury might presume from these facts that Carmin was not indebted to them, or said debt would have been settled at that time, but whether such presumption should follow or not was as much the province of the jury to determine as it was the province of the jury to weigh any other testimony in the case. In Ham v. Barrett, 28 Mo. 388, this language is used: “Where a presumption is one of fact merely the court is not warranted in declaring it to the jury as a presumption authoritatively raised by law, but should direct them that from the evidence it is their province to determine whether they will raise the presumption or not, .... where the facts are before the jury the presumption or inference they warrant are questions purely for them.” This case has been followed and approved in Sowders v. Railroads, 127 Mo. App. l. c. 124, 104 S. W. 1122; Morton v. Heidorn, 135 Mo. 1. c. 617, 37 S. W. 504; Bluedorn v. Railroad, 121 Mo. 1. c. 270, 25 S. W. 943, and has never been criticised or overruled for the very substantial reason that the principle therein announced is absolutely sound and must remain the law as long as the right of trial by jury is to be preserved. And while this is a claim against an estate we know of no reason why it should not be — 529 — determined by the same legal principles applicable to other cases. If we are right in holding that the testimony of Stell Linderman, daughter of plaintiffs, as to what took place at the time the money was furnished to Carmin, would warrant the jury in finding that the parties understood at the time that it was to be repaid, then the court would not be warranted in telling them that the presumption of fact which they might or might not raise, in their discretion, from the subsequent acts of the plaintiffs as above detailed, had so completely rebutted and overthrown the direct testimony of this witness that the jury must disregard it; yet this is, in effect, what the court would have done had it given the peremptory instruction as asked by defendant. Much stress is laid upon the fact that when Car-min returned from California he gave back to Mr. Linderman $10 of the money which he had furnished. We do not think this fact is entitled to any great weight for the reason that the repayment of $10 at that time Avas in no way inconsistent with the finding of the jury that at the time the money was furnished, the parties understood that it should be repaid, for if Mr. Linderman had furnished to Carmin the money to pay his expenses to California, either as a gift or as a loan, the return of such portion of the money as was not needed for the trip would be to our mind as consistent with one theory as with the other. The weight to be given to this circumstance, as with the other testimony, was purely a question for the jury and not for the court. Our conclusion is that there was sufficient testimony to take the case to the jury, and as this is the only error complained of, the judgment will be affirmed. Niwon, P. J., concurs. Gray, J., dissents, and maintains that the opinion of the majority does not follow the rule declared by the Supreme Court in State ex rel. v. Elliott, 157 Mo. 1. c. 618; Knorpp v. Wagner, 195 Mo. 662, — 530 — and by the Court of Appeals in Comstock v. Flower, 109 Mo. App. 275; Holt v. Morton, 58 Mo. App. 187, and Young v. Van Natta, 113 Mo. App. 550, and asks that the case be certified to the Supreme Court for decision. It is so ordered.